On behalf of the owners, Barrister Aitzaz Ahsan said that third-party rights have been created within the terms of the lease deed and BNP Group was given the authority to make transfer to third parties.
While concluding his arguments before IHC Justice Athar Minallah, the counsel said on Wednesday that the CDA stood by and watched the assets being built and developed and no notice was given regarding the grounds on which the cancellation eventually took place. “The CDA’s objection came after 11 years,” he noted.
Ahsan said that the CDA has never given a notice for any building code or bylaw violation, adding that no notice was served on the petitioner under the rules of the lease deed for the default on the part of petitioner, and no opportunity was given to address any such default.
Cancellation, therefore, he said, was beyond the authority of the CDA board, and none of the grounds mentioned in the cancellation of the lease order are relevant.
Ahsan said that under the terms of the agreement, the lease could only be cancelled on the grounds of default or illegal use of the premises, neither of which were the reasons for the termination.
He said that the building was reduced from 46 floors to 23 after the Civil Aviation Authority (CAA) denied approval for a building that tall. In addition, he said that the land was acquired for Rs4.88 billion, and though the number of floors was reduced to half, “the total price was not reduced”.
He assured the court that if the CDA approves the building plan today, the petitioner can mobilise and start work within a month on the ‘highest-quality building’ in the capital.
“CDA has yet to approve the building plan,” he revealed.
Arguing that the impugned decision is not sustainable, Ahsan said it was not in compliance with an IHC order from March this year and was also discriminatory, as no other builder has been treated in such a way. He argued that the Centaurus complex also later expanded during construction, but no action was taken against it. Besides, he said, the Public Accounts Committee (PAC) was not a competent authority to pass executive orders. “It can’t direct prosecution.”
The PAC had hinted that it would register a criminal case against at least two former heads of the civic agency and members of the CDA Board for giving undue favours to BNP, and on the directions of the PAC, the CDA referred the rescheduling and slow recovery of the amount to the Federal Investigation Agency and the National Accountability Bureau. In his arguments, he said that under a clause of the lease deed, the CDA was at fault for not obtaining the approval of the CAA and it cannot take benefit for this. He added that CDA admitted to having failed to process the building plan of the hotel tower.
Since the termination of land lease, he said, the petitioner has incurred different expenses amounting to Rs450 million in terms of payments to banks, experts, and contractors.
On July 1, he said that the premises were sealed without issuing any notice or giving an opportunity for hearing, and on July 29, the CDA terminated the lease agreement. He said that over two billion rupees had been invested in the project, and asked who would come to invest more if premises are sealed and there are plans to issue arrest orders and placing names on the exit control list.
“There is complete madness in all this,” he said.
Published in The Express Tribune, November 10th, 2016.
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